Opinion
04-21-00493-CV
10-05-2022
IN THE INTEREST OF L.Z.U., a Child
From the 63rd Judicial District Court, Val Verde County, Texas Trial Court No. 34608 Honorable Roland Andrade, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Irene Rios, Justice, Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
Cierra Michelle Umac ("Mother") appeals the trial court's order granting Stephen Anthony Bridges ("Father")'s petition to modify a previous order in this suit affecting the parent-child relationship ("SAPCR"). We affirm the trial court's order.
Background
On August 30, 2019, a SAPCR order was entered appointing Mother and Father as joint managing conservators of L.Z.U. with Mother having the exclusive right to: 1) designate L.Z.U.'s primary residence within Val Verde County, Texas; and 2) receive and give receipt for periodic payments for the support of L.Z.U. and to hold or disburse these funds for the benefit of L.Z.U. The trial court ordered Father to pay $446.00 in child support each month. The original SAPCR order contained a standard possession order, providing that Mother shall have the right of possession of L.Z.U. at all other times not designated by the standard possession order.
On October 26, 2020, Father filed a petition to modify the original SAPCR order, requesting that: 1) he and Mother be appointed joint managing conservators with Father being appointed primary joint conservator; 2) Mother be granted standard visitations for L.Z.U.; and 3) Mother pay a reasonable amount of child support to Father. Father asserted modification was in L.Z.U.'s best interest and a material and substantial change in circumstances had occurred. The trial court first held a hearing on Father's petition to modify on March 4, 2021 and at the conclusion of the hearing, the court ordered a social study and held the hearing in abeyance. On June 11, 2021, a child custody evaluation was completed, recommending that joint managing conservatorship continue with shared rights and duties between Mother and Father and recommending that Father have the exclusive right to determine the primary residence of L.Z.U.
On July 26, 2021, the trial court held a second hearing on Father's petition to modify and signed an order that granted Father's requested modification. In the order, the trial court found that the material allegations in Father's petition to modify the original SAPCR order were true and that the requested modification is in the best interest of L.Z.U. The trial court ordered that Mother and Father be appointed joint managing conservators with Father being appointed the primary joint managing conservator of L.Z.U. The modified order gave Father: 1) the exclusive right to designate the primary residence of L.Z.U. without regard to geographic location; and 2) the independent right to receive and give receipt for periodic payments for the support of L.Z.U. and to hold or disburse these funds for the benefit of L.Z.U. The trial court also ordered Mother to pay $224.31 in child support each month. The modified order contained a standard possession order, providing that Father shall have the right of possession of L.Z.U. at all other times not designated by the standard possession order.
Mother requested findings of fact and conclusions of law, which Father responded to. On October 6, 2021, the trial court entered findings of fact and conclusions of law. Mother appealed the trial court's order modifying the original SAPCR order.
Partial Reporter's Record
We note at the outset that Mother has presented this appeal on a partial reporter's record. The reporter's record only contains an excerpt of the judge's ruling from the first hearing on Father's petition to modify in March 2021 and contains the entirety of the second hearing on Father's petition to modify in July 2021. Under Rule 34.6(c) of the Texas Rules of Appellate Procedure, an appellant may present an appeal on a partial reporter's record if she includes in the request for a reporter's record a statement of the points or issues to be presented on appeal; she will be limited on appeal to only those points or issues raised. Tex.R.App.P. 34.6(c)(1); In re J.S.P., 278 S.W.3d 414, 418 (Tex. App.-San Antonio 2008, no pet.). "When an appellant fails to file the statement of appellate points or issues, we presume that the material missing from the reporter's record is relevant and supports the trial court's judgment." In re J.S.P., 278 S.W.3d at 418.
Here, there is nothing in the clerk's record indicating that Mother filed a statement of the points or issues she intended to present on appeal as required by Rule 34.6(c)(1). See Tex. R. App. P. 34.6(c)(1). We are therefore required to presume the omitted portions of the record are relevant and support the trial court's judgment. See In re J.S.P., 278 S.W.3d at 418; see also Serralde v. Flores, No. 04-17-00078-CV, 2018 WL 987263, at *2 (Tex. App.-San Antonio Feb. 21, 2018, no pet.) (mem. op.).
Material and Substantial Change
Mother argues the evidence is insufficient to support the trial court's finding of a material and substantial change in circumstances since its original SAPCR order. See Tex. Fam. Code Ann. § 156.101(a).
Mother does not challenge the trial court's finding that modification is in the best interest of the child. See id.
A. Standard of Review
"Because conservatorship determinations are intensely fact driven, the trial court is in the best position to observe the witnesses and feel the forces, powers, and influences that cannot be discerned by merely reading the record." In re J.S.P., 278 S.W.3d at 418-19 (internal quotation marks and citation omitted). Trial courts therefore have broad discretion in matters regarding custody, visitation, and possession of children, and we will not reverse a trial court's order modifying the terms and conditions of conservatorship absent a clear abuse of that discretion. In re V.R.G., No. 04-17-00583-CV, 2018 WL 842766, at *1 (Tex. App.-San Antonio Feb. 14, 2018, no pet.) (mem. op.). A trial court abuses its discretion when it acts arbitrarily or unreasonably. Id. A trial court does not abuse its discretion if some evidence of a substantive and probative character supports its decision. In re Guardianship of C.E.M.-K., 341 S.W.3d 68, 80 (Tex. App.-San Antonio 2011, pet. denied).
Under the abuse of discretion standard, challenges to the legal and factual sufficiency of the evidence are not independent grounds of error, but are factors to be considered in determining whether the trial court abused its discretion. Roberts v. Roberts, 402 S.W.3d 833, 838 (Tex. App.-San Antonio 2013, no pet.). When an appellant challenges the legal and factual sufficiency of the evidence under this standard, we consider: (1) whether the trial court had sufficient information on which to exercise its discretion; and (2) whether the trial court erred in exercising its discretion. In re T.K.D.-H., 439 S.W.3d 473, 481 (Tex. App.-San Antonio 2014, no pet.). "In determining whether the trial court had sufficient information, we use the traditional standards of review for legal and factual sufficiency." Id. "Once we determine whether sufficient evidence exists, we must then decide whether the trial court's decision was reasonable." In re Guardianship of C.E.M.-K., 341 S.W.3d at 80.
When a party challenges the legal sufficiency of an adverse finding on which she did not have the burden of proof at trial, she must demonstrate that no evidence supports the challenged finding. See Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.-Austin 2006, pet. denied). We must consider the evidence favorable to the finding if a reasonable factfinder could, disregard any contrary evidence unless a reasonable factfinder could not, and indulge every reasonable inference in favor of the finding. In re Guardianship of C.E.M.-K., 341 S.W.3d at 80-81. "The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." Id. at 81.
When an appellant challenges the factual sufficiency of an adverse finding on which she did not have the burden of proof, she must demonstrate that the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Zeifman, 212 S.W.3d at 589. In reviewing a complaint of factual insufficiency, we consider all of the evidence in the record, but we may not merely substitute our own judgment for that of the trier of fact. Id. at 588-89.
B. Applicable Law
Section 156.101 of the Texas Family Code sets forth the grounds upon which a trial court may modify an order "that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child." Tex. Fam. Code Ann. § 156.101(a). Such an order may be modified if: (1) there has been a material and substantial change in circumstances since the prior order; and (2) the modification would be in the best interest of the child. Id.; In re M.G.N., 491 S.W.3d 386, 405 (Tex. App.-San Antonio 2016, pet. denied).
To prove a material and substantial change in circumstances since the prior order, the movant must show what conditions existed at the time of the entry of the prior order and what material conditions have changed in the intervening period. In re T.W.E., 217 S.W.3d 557, 559- 60 (Tex. App.-San Antonio 2006, no pet.). "'The controlling considerations are those changes of conditions affecting the welfare of the child.'" Epps v. Deboise, 537 S.W.3d 238, 243 (Tex. App.-Houston [1st Dist.] 2017, no pet.) (quoting Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex. 1966)). A determination of whether a material change in circumstances has occurred is not guided by rigid rules, but is, instead, fact-intensive. In re T.W.E., 217 S.W.3d 557, 559 (Tex. App.-San Antonio 2006, no pet.). "Material changes may include (1) the marriage of one of the parties, (2) poisoning of a child's mind by one of the parties, (3) change in the home surroundings, [or] (4) mistreatment of a child by a parent or step-parent[.]" Interest of J.R.L., No. 04-19-00049-CV, 2020 WL 2543315, at *3 (Tex. App.-San Antonio May 20, 2020, no pet.) (mem. op.) (citation omitted). The movant is not required to show that the material and substantial change negatively affected the child. See In re J.J.L., No. 04-12-00038-CV, 2012 WL 3985798, at *1 (Tex. App.-San Antonio Sept. 12, 2012, no pet.) (mem. op.).
C. Analysis
We hold that the trial court did not abuse its discretion by finding that there has been a material and substantial change in circumstances since the original SAPCR order. See Tex. Fam. Code Ann. § 156.101(a).
The trial court held two hearings on Father's petition to modify the original SAPCR order. From the excerpt that we have of the first hearing on Father's petition to modify, we know that the trial court heard evidence of how Father possessed L.Z.U. more than he needed to during the year preceding the hearing and that the trial court "was concerned with the fact that [Mother] was not in possession of [L.Z.U.]" See In re J.R.L., 2020 WL 2543315, at *3 (noting that a material change may include a "change in the home surroundings."). As we noted at the outset, we must presume the omitted portions of the reporter's record from this hearing, including Father's testimony, support the trial court's judgment. See Serralde, 2018 WL 987263, at *2.
At the second hearing in July 2021, the trial court considered a child custody evaluation that it ordered at the previous hearing. The evaluator did not testify, but her report was admitted into evidence. See In re J.R.L., 2020 WL 2543315, at *3 (using investigator's report from court-ordered social study as evidence to support modification of a previous SAPCR order). In the report, the evaluator recommended that Father have the exclusive right to determine the primary residence of the child. The evaluator noted that Mother "stated she does not wish to continue residing in Del Rio, Texas[, and that a]lthough she has made no finite plans to relocate, it is noted that she has made impulsive decisions involving former paramours such as becoming pregnant after a two-month relationship as well as admitting that she contemplated relocating with another former paramour." The evaluator also noted that Mother admitted to using Clonidine and Cannabis and the evaluator recommended that Mother "refrain from the use of illicit drugs while in possession of [L.Z.U.]." In the evaluation, it was noted that Mother "was observed to be distracted and forgetful while in possession of [L.Z.U.] and when the maternal grandmother took [L.Z.U.] indoors, [Mother] had a moment of panic when she forgot that the child was no longer in the yard." The trial court stated that based on the evaluator's recommendation and on the two hours of testimony from the first hearing, "the circumstances of the child, the conservator and of all the parties have been affected and materially and substantially changed since the date of the last order, and the modification . . . is in the best interest of the child."
Mother does not dispute this evidence, but she argues that the concerns about her drug use in the evaluation existed at the time the original SAPCR order was entered and any other new evidence in the report only relate to the best interest prong of Section 156.101(a). See Tex. Fam. Code Ann. § 156.101(a). However, even if Mother's drug concerns existed at the time of the previous SAPCR order, the trial court was presented with evidence that since that order, Mother's drug concerns have negatively affected L.Z.U. See id.; see also In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (evidence of Mother's substance abuse issues supported modification, even though they were present at the time of the previous order, because Father produced evidence that the child's circumstances had changed as a product of Mother's substance abuse). Further, evidence in the court-ordered report can relate to both the best interest prong and the material and substantial change prong of Section 156.101(a). See Tex. Fam. Code Ann. § 156.101(a); see also In re J.R.L., 2020 WL 2543315, at *6 (using the same evidence to conclude there was sufficient evidence to satisfy both prongs of Section 156.101(a)).
We conclude the trial court had sufficient evidence to find a material and substantial change in circumstances. See In re J.R.L., 2020 WL 2543315, at *4. Accordingly, the trial court did not abuse its discretion in modifying the original SAPCR order. See id. We overrule Mother's sole issue on appeal.
Conclusion
We affirm the trial court's order.